Land and Environment Court of New South Wales CITATION : Polly Roberts v Sydney City Council [2004] NSWLEC 83 revised - 20/04/2004 APPLICANT Polly Roberts PARTIES : RESPONDENT Sydney City Council FILE NUMBER(S) : 11135 of 2003 CORAM: Bly C KEY ISSUES: Development Application :- Brothel LEGISLATION CITED: South Sydney Local Environmental Plan 1998 CASES CITED: Baulkham Hills Council v Dixon Sands (Penrith) Pty Ltd (Unreported); Michael John Noble and Anor v Cowra Shire Council [2003] NSWLEC 178 DATES OF HEARING: 12-13/02/2004 DATE OF JUDGMENT: 03/15/2004 APPLICANT Mr J Johnson, barrister SOLICITORS Lang Gellert and Noonan LEGAL REPRESENTATIVES: RESPONDENT Mr C Leggat, barrister SOLICITORS Abbout Tout JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11135 of 2003 Bly C 15 January 2004 Polly Roberts Applicant v Sydney City Council Respondent Judgment Introduction 1. On 6th December, 2001 the South Sydney City Council issued conditional development consent No. 314/2001 ("the existing consent") enabling the use of the first floor of the existing building at 36 - 36A Darlinghurst Road, Potts Point ("the premises") as a brothel. Condition 54 of that consent was to the effect that the brothel could operate for a period of 12 months as a trial and that, (unnecessarily) a further development application to continue the use may be lodged at the end of the trial. 2. On 12th September, 2002 a development application ("the application") to continue the use of the premises as a brothel was lodged with the South Sydney City Council. 3. On 8th May, 2003 the locality in which the premises are located was transferred to the City of Sydney. The Sydney City Council being the responsible authority refused the application and is the respondent in these proceedings. Statutory provisions 4. The premises are situated within Zone No. 10 - Mixed Uses under South Sydney Local Environmental Plan 1998 ("the LEP"). Being commercial premises, the brothel is permissible with development consent. 5. Clause 8 of the LEP requires that the goals and objectives of Strategy for a Sustainable City of South Sydney be taken into consideration. 6. Clause 10 requires that consent must not be granted unless the proposal is consistent with the applicable objectives of the zone. These objectives are contained within clause 21 of the LEP and relevantly relate to: allowing a mixture of compatible land uses; the minimization of vehicular travel; and the minimization of adverse impacts caused by non-residential development on residential amenity. To the extent that these objectives are relevant to the application I have been persuaded by the evidence of Mr Dickson, subject to appropriate conditions of consent, that the brothel would not be inconsistent with these objectives. 7. Also relevant is the South Sydney Sex Industry Policy ("the South Sydney policy"). This policy contains various provisions relating to the management of brothels. I understand that the agreed consent conditions and the associated plan of management reflect these provisions. 8. The South Sydney policy has been superseded by the City of Sydney Sex Industry Policy ("the Sydney City policy"). Unlike the South Sydney policy the Sydney City policy provides that development consent may not be granted for a sex industry premises if another such premises (other than a private sex worker business) is located within 75 metres. The proposal would be contrary to this requirement. However, taking into account the existing consent, the fact that this requirement was not applicable when the application was lodged and the absence of any significant environmental harm, I do not accept that this should be determinative of the application. Advertising and Council's decision 9. The application was advertised and no objections were received although upon notification the NSW Police advised that they objected to the proposal for reasons relating to: under-age prostitution; drug distribution on the premises; attracting major crime figures; and prostitutes and doormen soliciting outside the front door of the premises. 10. The application was refused for reasons relating to: non-compliance with conditions of consent; inconsistency with zone objectives; unreasonable concentration of like uses; and concerns regarding ongoing criminal activity. The evidence 11. On behalf of the respondent Council, expert evidence was given by: + Mr S Connelly - town planner + Detective Snr Const G Prosser - NSW Police 12 . On behalf of the applicant expert evidence was given by: * Mr R Dickson - architect and town planner The issues 13. The Court and the applicant, were provided with a Statement of Issues which in essence became: + Whether the use of the premises as a brothel has had or would have any adverse impacts on the residents of the area and other persons who might use the street in the vicinity. + Whether past breaches of conditions of consent and of the management plan warrant refusal of the application and whether future conditions of consent will be complied with. + Whether alleged unlawful or unapproved activities conducted on or from the premises warrants refusal of the application and whether such activities might continue, contrary to the public interest. 14 . A number of other matters under the Building Code of Australia, particularly health and fire safety matters were also raised. These are all practical matters which are capable of rectification and in this regard a number of deferred commencement and other conditions have been prepared and are acceptable to the applicant. The deferred commencement matters must all be rectified before any consent to use the premises becomes effective. In these circumstances I am satisfied that these existing non-compliances should not be an impediment to the granting of development consent. Impacts on the neighbourhood and breaches of consent conditions 15. Whilst there have been no complaints to the council I accept the evidence of Det Prosser that in the past, doormen and prostitutes have sought to secure the business of passers-by whilst standing on the footpath outside the front door of the premises. This was done contrary to a condition of consent. However there is no evidence that this activity has occurred in the recent past or that it is continuing. Similarly, other than a reference on an advertising sign associated with the premises there is no evidence that the brothel continues to provide escort services. There was no suggestion that there are any other amenity impacts associated with the brothel. 16. In these circumstances I have not been persuaded that the use of the premises as a brothel, subject to compliance with conditions of consent, would have any adverse impact on the neighbourhood which would warrant refusal of this application. Compliance with conditions of consent 17. According to Mr Connolly during the 12 month trial period a number of conditions of consent and the management plan were not complied with, including the matter referred to above where doormen have been seen "spruiking" for business on the footpath adjacent to the entrance to the premises. Other conditions which are said not to have been complied with include under-age prostitution, illegal drug use and the provision of escort services. 18. Mr Connolly accepted that the relevant conditions of consent were capable of being complied with, but contended that these non-compliances mean that the applicant cannot be relied upon to comply with reasonable conditions in the future. As a consequence the amenity and safety of the locality would be at risk. Moreover to approve this application in the light of the history of non-compliances would be contrary to the best interests of public policy. 19. It was submitted on behalf of the respondent that, given past non-compliances with conditions of consent and alleged unlawful activities on the premises (which are dealt with later), this was a basis to refuse the application. In this context I was referred to the Class 4 proceedings Baulkham Hills Council v Dixon Sands (Penrith) Pty Ltd (unreported - Land and Environment Court of New South Wales: 1998 - 98/40130). In this case Lloyd J, despite concluding that the respondents could not be trusted to comply with conditions of development consent, made orders to the effect that the land could not be used for the purposes of extractive industry and sand mining until such time as a development consent permitting any such use is granted. 20. My attention was also drawn to the Class 4 proceedings Michael John Noble and Anor v Cowra Shire Council [2003] NSWLEC 178 where Bignold J noted that in the unusual circumstances of that case a genuine consideration of the known experience of the existing operation was required. Importantly such consideration should be undertaken in preference to reliance on the type of evaluation which had informed Council's original decision to grant development consent to what was then an entirely future development. 21. I am satisfied that Noble should be distinguished from the present case given that it involved an unlawful development with a history of complaints over a five-month period. In this case, the brothel is not unlawful in that it has received development consent and there have been no complaints lodged with the council. Nevertheless some weight can be given to the fact of the non-compliances with conditions of development consent. Also one cannot infer from Dixon Sands that because an applicant may not be able to be trusted this does not mean that development consent cannot be granted. 22. Taking these matters into account and the circumstances of this case I have not been persuaded that past non-compliances with the conditions of consent associated with the land use itself are such as to warrant refusal of the application. 23. Were the non-compliances and the matters of concern to Det Prosser continuing to occur these would have attracted greater concern. However again taking into account that there have been no objections from the public to the council in relation to such activities which seem to have ceased, this confirms my view that refusal of the application is not warranted 24. Finally here, conditions of consent will apply to such activities. If these conditions or the provisions of the incorporated plan of management are not complied with, mechanisms are available to the council under the Environmental Planning and Assessment Act, 1979 to deal with any such non-compliance. Alleged illegal activities 25. Det Prosser gave evidence in relation to an executed search warrant of the premises and the subsequent Event Report (12 February 2002; Exhibit 7) and transcript of interview with Polly Eva Roberts (12 February 2002; Exhibit 10). This evidence was to the effect, inter alia, that a quantity of money and illegal drugs was discovered on the premises and that some of the prostitutes who work on the premises are available for escort services and some could be under-age. Miss Roberts was subsequently charged with the possession of a small amount of cannabis but this charge was dismissed. 26. Det Prosser also gave evidence that he was not aware of any other relevant prosecutions and nor was he aware of the police being called to the premises in response to any complaint. 27. It is now more than two years since the police visited the premises and interviewed Miss Roberts and there is no suggestion that any of the alleged illegal activities reported at that time are continuing. Moreover in relation to those activities there has been no prosecution (other than that referred to above) or conviction. I therefore give these matters very little weight. Also it seems to me that it would be inappropriate to allow alleged illegal activities which in a land use sense are not related to the existing or proposed consent to determine whether a future land-use development consent should be granted. Conclusion 28. In all of the circumstances of this case I have not been persuaded that the granting of the consent as sought would be contrary to the public interest and conclude that development consent can be granted, subject to the conditions of consent and the agreed plan of management which were agreed to by the applicant. Orders 1. The appeal is upheld. 2. Development application No 1167/2002 for a brothel at 34 - 36A Darlinghurst Road, Kings Cross, is determined by the granting of development consent subject to the conditions set out in Annexure A hereto. 3. Exhibits 9, B and E are retained. _______________________ T A Bly Commissioner of the Court Ljr/rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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